Brutal Benchslap: ‘We Found Enough To Establish Attorney Misconduct At Least 5 Pages Ago.’

You know it's bad news when the opinion in your case opens with: "This is a case of egregious attorney misconduct."

“This is a case of egregious attorney misconduct.” Those eight words kick off a 14-page opinion eviscerating a government attorney for her conduct at trial. It’s an ominous opinion to be sure, but entirely deserved because the opinion is only as deliciously harsh as the lawyer’s conduct is shocking.

Karen Bilotti, a lawyer for the California Department of Transportation (“Caltrans”), dutifully defeated a claim brought by a motorcyclist against the state after he crashed his bike in what even the Guinness Book of World Records recognized as the most complex road interchange in the world. On appeal, a panel of the Fourth Appellate District could hardly contain their shock as they reviewed the trial record.

You know it’s bad when there’s an entire point heading entitled, “The Nazi Reference.”

Simply put, Karen Bilotti ignored a string of motions in limine and repeatedly pursued questions even after the trial judge sustained objections. And the trial judge sat by and allowed her to do it. As Judge William W. Bedsworth wrote for the panel:

Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.

From the get go, the opinion is spitting nails, logging multiple instances of misconduct in Bilotti’s opening statement before turning to the cross-examination of the plaintiff. Emphasis in the original here:

We count no less than 10 direct violations of the judge’s in limine order in the course of her cross-examination. All the violations and references occurred after a series of sustained objections and clear admonitions from the trial court.

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And if you think that’s some chutzpah:

In forensics there is what has become known as “Godwin’s Law.” Broadly speaking, Godwin’s law is that the first side in an argument to compare the other side to Hitler or the Nazis loses. Apparently unaware of this rule, Bilotti used Martinez’s damaged motorcycle to make a gratuitous, out-of-the-blue attempt to link Martinez to Nazis.

Oh yes. Remember this is a case about crashing a motorcycle into a guardrail, meaning that somewhere in the depths of hell, even Hitler looked up from his copy of The Art of the Deal (affiliate link) in complete shock at the prospect of making his way into this proceeding. And that’s before the point heading:

Closing Argument: The Nazi Reference Resurfaces

She brought it up again. Ultimately, the opinion would refer to Bilotti’s Nazi fixation as the “pièce de résistance” of her misconduct, marking the second time that Nazis and French for “resistance” came together to disastrous effect.

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Whereas before the Nazi reference was only to a helmet, and was isolated, Bilotti now exploited the opportunity to psychologically link Martinez to Nazis by paraleptically using the word “Nazi” six times in rapid succession. And this time the link was stronger – Bilotti wasn’t just referring to a mere article of clothing but to Martinez himself.

That was enough for the appellate court. As Judge Bedsworth wryly put it:

Did Bilotti commit misconduct in this case? Let us count merely the most obvious ways.

And after laying out those obvious points, Judge Bedsworth notes there’s still more out there.

We have recounted the truly egregious, indisputable instances of misconduct. Martinez, in this appeal, asserts there is yet more. But we see no reason to go further. Suffice to say we found enough to establish attorney misconduct at least five pages ago.

For Karen Bilotti, it must be a rough opinion to read. Indeed, the only thing worse for her than that fantastic opening sentence is the dispassionate proceduralism of the final sentence:

The mailing of this opinion to counsel and its disposition will also constitute notification to Attorney Bilotti the matter is being referred to the State Bar.

Bunch of Nazis on the appeals panel, amiright Karen?

(Read the complete trainwreck on the next page…)